Free Speech

Campaign Finance Curbs and Bipartisan Censorship

Censorship is a bipartisan affair.


First Amendment
Wikimedia Commons / Robin Klein

Congressional Democrats are lining up behind a constitutional amendment to allow restrictions on campaign contributions and spending, and Republicans, to their everlasting credit, are opposed. They agree with the Supreme Court that limits like these are limits on speech, and they think it would be a mistake to amend the Constitution to abridge freedom of speech.

This position is particularly welcome because it represents something of a reversal by the GOP—not on regulating campaign finance, but on censoring speech. Republicans, oddly, have made the reversal without acknowledging—or perhaps even realizing—what they've done.

The amendment, sponsored by Sen. Tom Udall of New Mexico and approved by the Judiciary Committee, is intended to overturn the Supreme Court's 2010 Citizens United decision. In that case, the court said corporations and labor unions may spend as much as they want on "independent expenditures" to elect or defeat candidates. This measure would allow Congress to impose limits on contributions to candidates, spending by candidates and spending by anyone trying to influence the outcome of an election.

It would have a stifling effect on political debate by curbing ads about those running and the issues at stake. "It is intended to limit speech about elections, and it would do just that," legendary First Amendment lawyer Floyd Abrams told the Senate Judiciary Committee in June. It "would shrink the First Amendment and in doing so set a precedent that would be both disturbing and alarming."

Abrams, who has represented such organs of the mainstream media as The New York Times, ABC, NBC, and CBS, does not often find himself in the warm embrace of conservatives. But on this issue, he is. Of Udall's 48 co-sponsors, not one is a Republican.

GOP senators staunchly oppose the amendment on principle. "Free speech creates a marketplace of ideas in which citizens can learn, debate and persuade fellow citizens on the issues of the day," Charles Grassley of Iowa, the ranking Republican on the Judiciary Committee, said. The supporters of the amendment, however, "want to punish, intimidate and silence those with whom they disagree."

Texas Sen. John Cornyn tweeted mournfully: "Words I never expected to write: the Senate Judiciary Committee is voting now on amending the Bill of Rights." Sen. Jeff Sessions of Alabama has praised the Citizens United ruling, in which, he said, "the court's traditional wing protected the right to freedom of speech, and the progressive wing voted to protect government power."

All eight Republicans on the committee voted against the amendment, including Sessions, Cornyn, Orrin Hatch of Utah and Lindsey Graham of South Carolina.

It's heartening to hear these sentiments from Grassley and his GOP colleagues, and not just because they are on the right side of the issue. It's also because their arguments are the opposite of what they were saying a few years ago, when another constitutional amendment was on the table.

That one would have allowed Congress to ban desecration of the American flag. It came after the Supreme Court ruled that flag-burning is a form of expression protected by the Constitution. "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable," said the court.

The amendment failed in the Senate in 2006, as it had before, despite overwhelming GOP support. (One commendable exception: Mitch McConnell of Kentucky, who also opposes the campaign finance amendment.) Grassley voted for it. So did Cornyn, Sessions and Graham. Hatch has introduced the amendment nine times, most recently in 2013.

They did all this even though the criticisms leveled against the campaign finance amendment are equally applicable to the flag amendment. Cornyn was not so shocked by the idea of amending the Bill of Rights then; in fact, he liked it.

In that context, it was Sessions rather than liberal justices who chose government over freedom of speech. Grassley was among those back in 2006 eager to "punish, intimidate and silence those with whom they disagree."

These senators and their allies insisted that flag-burning was not really speech and undermined democracy. Today, supporters of the campaign finance amendment argue that election spending is not really speech and undermines democracy.

What it boils down to is that both sides find some types of political communication offensive to them and therefore undeserving of protection. Censorship is a bipartisan affair.

NEXT: Brickbat: Bad Boys

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  1. While I have no truck with the anti-flag burning amendment, the argument was that the act was offensive in itself but lacking content in terms of speech. The amendment the Democrat’s favor is explicitly about regulating the content of political speech. It is not nearly the same thing. Chapman is engaging in a rather superficial tu quoque argument for whatever his purposes are

    1. So just like “the press” only refers to printing press technologies around in 1787 and not things like the internet; “speech” only refers to words and not wordless expressions. And the 2A only refers to those types of firearms in existence in the 1780s.

      1. Does that also mean that newer religeons like Mormanism, Environmentalism and Pastafarianism aren’t covered either?

      2. “speech” only refers to words and not wordless expressions.

        Can you tell me something that isn’t a wordless “expression”, cause I am drawing a blank.

        Armed robbery is the way that I “express” myself. Does the 1st protect my “expression”?

    2. Chapman is, correctly, pointing out that both sides of TEAM BE RULED have free speech that they would like banned constitutionally.

      My POV is that banning political speech would have more dire consequences than banning burning flags, so the degree of infringement is quite different, but Chapman is right to point out that neither major party unreservedly embraces free speech.

    3. Your argument is the same as that used by progressives. Namely, spending money is lacking content in terms of speech, therefore you can ban spending money. Burning a flag is more like speech to them since they do not understand that economic freedom is the same thing as personal freedom.

      It is all freedom, it is all expression, it is all speech.

    4. When I burn the flag you hold dear, I’m saying to you something along the lines of “fuck your state.” Not without content.

      To support a constitutional prohibition against flag burning is what’s offensive.

  2. OT, but it’s something worth repeating in every thread and references something in the Newsmax ad on the side: Fuck you, Lindsey Graham.

    1. What is this “ad” you speak of? Like those things that used to plague the interwebs until adblock came along?

  3. All well and good but since when have conservatives been particularly into a “marketplace of ideas”? At the very least, they’re no more strangers to censorship than progressives.

    1. We’re no strangers to censorship
      You suppress speech, and so do I
      We both love to do this kind of shit
      Like just about every other guy

  4. Republicans, oddly, have made the reversal without acknowledging?or perhaps even realizing?what they’ve done.

    This could be said about them, and Dems, about a lot of things.

  5. Republicans, to their everlasting credit, are opposed.

    Merely as a demonstration of their obtuse kneejerk obstructionism.
    If the Democrats had not thought of it first, they’d love it.

    1. Nothing wrong with obstructionism. Every law you ever hated could have been thwarted if only our government was dysfunctional enough.

  6. Rollem up boys rollem up.

  7. Chapman is comparing apples to shit piles here. Flag burning should not be band. That said, comparing this with regulating all political advertisements in all media writ large is epic derp.

    Steve, start your drinking and pharmacological experiments after you write. Not all sins are the same. Team Red sucks enough all on its own. Team Blue is worse in this instance. If you feel need to do penance, write an article about prohibition or gay marriage.

    1. True. The flag desecration thing would affect a minuscule number of people, and would be trivial to get around: You just desecrate some other flag, even one that has a great resemblance to the flags that are covered. The campaign finance bit would have serious consequences.

  8. Nothing wrong with obstructionism.

    Not at all. Every time I hear somebody whine about “do nothing Congress” I get a ringing in my ears from the blood pressure spike. I wish they would just confine themselves to drinking whiskey and playing cards.

    1. Agreed, I would only ask that they pass an omnibus – “sunset law.” All laws and reg’s are null and void after 7 years unless reinstated. Reinstatement’s can only happen on a case by case basis. This applies to agencies reg’s like FDA etc.

      Between that, poker and the whiskey drinking we may see the bastard ‘too busy’ to fuck us over any further.

    2. “Okay, yes, Congress is deadlocked. What would you like to see it do?”

      “Come together to pass [Democratic wishlist].”

      “So, just steamroll GOP opposition, then.”

      “No, it needs to be bipartisan.”


  9. I think there’s a qualitative difference between flag burning and spending money on a political campaign. For all the self-inflating rhetoric of the flag burners, burning a flag for any reason other than respectful disposal is basically the same thing as mooning somebody; a disrespectful and vulgar act that one might expect from a fraternity pledge.

    Which isn’t to say that I agreed with the push for a Flag Burning Amendment; I thought that amending the Constitution to deal with them accorded flag burners a dignity far out of proportion to their importance. I felt and feel that the proper way to deal with politically motivated flag burners is to write them a summons for setting a fire in a public place. Most jurisdictions have laws against such behavior, for good reason. A burning piece of cloth the size of the sort of flag these pests usually burn is not a safe object. I believe that there is ample precedent for limiting forms of expression that are immediately physically dangerous to the public. I also believe that this is a time honored tactic for expressing displeasure with, for example, the KKK and their cross burnings. So in future people wanting to burn a flag in order to provoke outrage would require obtaining a permit, or involve paying a fine or being arrested for reckless endangerment, and would place the flag burners on all fours with the KKK.

    Where they belong.

    1. Aside; (I had to cut this because of the word limit)

      If there isn’t precedent for limiting expression that is immediately physically dangerous to the public, I would like to see 1st Amendment challenges to fireworks bans.

  10. Corporations are not people and have no natural rights! “Citizens United 2010” supported a corporation’s/artificial person’s right to free speech, not necessarily an individual’s right to speech. A distinction that is often lost or hidden intentionally. An individual may express himself/herself in any way they see fit as long as it does not harm another, or infringe upon another’s natural rights. This is at the core of what it means to be an American. Corporations should have no “rights” and should be limited to activities specifically mandated in their charter. If the members of a corporation/union/PAC would like to exercise their rights to free speech they may do so whenever they choose, just not behind the mask of charter/incorporation. This is the same guile they (read individuals that are members of a corp/union/etc.) use to shirk liability and responsibility for misdeeds. We need to do away with corporate personage and empower individuals over organizations. Fascism cannot withstand, or tolerate, an empowered individual.

    1. Corporations are groups of people. Groups have free speech rights. Screeching that Corporations do not have such rights frankly makes me suspect that there are SPECIFIC groups that your wish to silence.

      When you can explain to me the precise moral difference between a group of people calling themselves “The Sierra Club” and a group of people calling themselves “The Exxon Corporation”, then I might be willing to listen to you. Might.

      1. There is no moral difference between your two examples. I want neither of the two “artificial persons” you cited to have natural rights. Conferring natural rights to an artificial person inherently diminishes my natural rights, as it gives the same respect under the law to an inanimate or artificial entity. Each individual member of any organization may exercise their right to free speech and I applaud them to do so fervently. The hazard is believing that any group should be given natural rights because it is well intended or in political favor. Societies that empower the individual are free. Societies that empower groups/organizations/corps are tyrannical, as they usurp the individual for the greater good. Are you still willing to listen?

        1. Ok, at least you are consistent. Most of the folks I have run into making the “corporations aren’t people” argument want to stifle SOME groups, but would be horrified at the suggestion that such rulrs as the envision might be applied to groups they belong to.

          Of course if we junked all levels of “campaign finance reform”, so that individuals could give whatever they damn please to political campaigns a lot of this problem would go away.

          I don’t agree with you, though, on a practical level. Yes, the personhood of a corporation sma legal fiction, but the existance of a corporation as something somehow different from a group of people is also a legal fiction. And groups snould have the same right to speak as individuals, or those who wish to rule us will supress group expression and ignore individual expression.

          1. Excellent?dialogue instead of Loki’s “DERP” shit, and thank you, I try to make a consistent argument. I also agree that eliminating “campaign finance reform” in its totality would be a good thing. As long as contributions are made in the light of day and subject to scrutiny of the public eye, one is free to spend their money on whatever they wish.
            I agree that there is a place for legal incorporations and unions in the fabric of our society and economy. However, it is imperative that they be constrained by means of a specific mandate or charter (in purpose and in lifespan) and they do not become supreme to ANY individual. The “agents of the king” that our forefathers feared and fought were his companies and corporations given power over the individuals they ruled in proxy. This is exactly the same principle that necessitates a set of constraints on any government, i.e. a constitution that would specifically limit its power and scope. Unfortunately for us the constraints have been loosed on organizations both public and private. It is incumbent upon us to reinstate these protections and regain the supremacy of the individual thereby ensuring by a free society.
            The $56,000 question: HOW?

            1. One thought that keeps coming to me as I watch the circus that is our political life is that many issues are not matters of a particular system being WRONG so much as they are matters of said system having calcified, and needing to be shaken up.

              No system involving humans is going to be perfect. No imperfect system is going to continue for any length of time without its errors building up. Therefore any human system will need to be shaken to its roots on a regular basis.

              I think that this is, at base, what is “wrong” with the Public School system. The system isn’t malign in and of itself, and at one time it represented a huge step forward. But it has calcified to the point that it no longer serves its societal purpose.

              That said; how about we deny the Government, its agents, and subsections anything resembling civil rights. The Government has no right to bear arms not specifically granted it by the people. The government has no right to speech or publication not specifically granted by the people. Representative may propose legislation granting such rights, but it must be passed by plebiscite.

              Probably won’t happen; the would-be ruling class isn’t hat stupid. But we can dream?.

            2. “However, it is imperative that they be constrained by means of a specific mandate or charter (in purpose and in lifespan) and they do not become supreme to ANY individual.”

              You talk as if corporations were run by robots or space aliens. Corporations do what their owners want them to do, that is a group of individuals getting together and making choices.

              They don’t need to be “constrained” separately. If the majority of owners decide management isn’t doing what they want them to do, they fire management. And if you disagree with the majority of owners, you can sell and buy shares in some other company.

              I still don’t even understand what problem it is you actually want to solve.

        2. “Conferring natural rights to an artificial person inherently diminishes my natural rights”

          No rights are being conferred at all. The court merely acknowledged that people who get together as a corporation don’t lose the ability to engage in free speech. That’s important because forming a corporation is pretty much the only way people can realistically get together on a large scale, pool their resources, and speak up. Without that ability, free speech becomes meaningless.

          “Societies that empower groups/organizations/corps are tyrannical”

          Quite true, and that is exactly what a constitutional amendment on Citizens United would do: it would mean that the only organizations permitted to engage in political speech would be big media corporations and political parties, while private citizens would be reduced to standing on street corners looking crazy.

          1. while private citizens would be reduced to standing on street corners looking crazy.

            Don’t judge my hobbies.

    2. Shorter version:


  11. Of Udall’s 48 co-sponsors

    This piece of shit got 48 co-sponsors? We’re so fucked.

    1. In the long history of representative government there is ample precedent for assuming that any governing body with include more than its statistical share of dolts. This isn’t new, or particularly alarming in itself.

      Which isn’t to say that it should not be remarked, and thoroughly mocked.

      1. Given all that … we are still ever so fucked

        1. in this regard we are no more fucked than we have been since the days of ancient Athens.

          Of course we are no LESS fucked either?.

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